Legislature(2011 - 2012)CAPITOL 120
03/11/2011 01:00 PM House JUDICIARY
Audio | Topic |
---|---|
Start | |
HB14 | |
HB127 | |
HB76 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | HB 14 | TELECONFERENCED | |
+= | HB 127 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+= | HB 76 | TELECONFERENCED | |
HB 14 - EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL 1:06:27 PM CHAIR GATTO announced that the first order of business would be HOUSE BILL NO. 14, "An Act authorizing state agencies to pay private legal fees and costs incurred by persons exonerated of alleged Alaska Executive Branch Ethics Act violations; allowing certain public officers and former public officers to accept state payments to offset private legal fees and costs related to defending against an Alaska Executive Branch Ethics Act complaint; and creating certain exceptions to Alaska Executive Branch Ethics Act limitations on the use of state resources to provide or pay for transportation of spouses and children of the governor and the lieutenant governor." 1:07:11 PM GRETCHEN STAFT, Staff, Representative Max Gruenberg, Alaska State Legislature, on behalf of the sponsor, Representative Gruenberg, explained that HB 14 would set forth in statute the substance of the administration's recently-enacted regulations establishing standards for the reimbursement of legal fees and costs for exonerated executive branch employees accused of ethical violations, and for the payment of certain travel expenses for the families - spouse and children - of the governor and lieutenant governor. Placing these standards in statute rather than just in regulations would address concerns that the regulations were enacted outside the scope of the administration's authority, and would remove any appearance of impropriety - that the executive branch created regulations that would specifically benefit the executive branch. However, the regulations and HB 14 differ in two ways. Under the regulations, only the travel expenses of minor children could be reimbursed, whereas under the bill, the travel expenses of any dependent child - including, for example, a mentally or physically disabled child - could be reimbursed even if he/she were not still a minor; and under the regulations, the legal fees and costs could be reimbursed before the executive branch employee was exonerated, whereas under the bill, reimbursement couldn't occur until after he/she was exonerated. She relayed that the sponsor considers this latter difference to be a better policy choice and safer for the State. CHAIR GATTO observed that they wouldn't want to have paid the legal fees and costs of someone who was never exonerated. MS. STAFT concurred. 1:11:02 PM MS. STAFT then went on to explain that specifically, Section 1 of HB 14 - in addition to making a minor stylistic change in AS 39.52.120(b)(6) to the term, "for partisan political purposes" - would delete the definition of that term from that paragraph. That definition [along with stylistic changes] would then be included in Section 3's proposed AS 39.52.120(h). Section 2 would make a similar stylistic change to AS 39.52.120(f). Section 3 would add two new paragraphs to AS 39.52.120: proposed paragraph (g), and, again, proposed paragraph (h); specifically, proposed paragraph (g) would authorize the use of state resources to pay the travel costs of the spouse and children of the governor or lieutenant governor to an event that meets certain criteria. Under those criteria, the event cannot have a partisan political purpose, and must be of benefit to the state, as enumerated in proposed AS 39.52.120(g)(2)(A)-(D). MS. STAFT, in response to a question, paraphrased Section 3's proposed definition of the term, "partisan political purpose", which read: (h) In this section, "partisan political purpose" (1) means a purpose intended to differentially benefit or harm a (A) candidate or potential candidate for elective office; or (B) political party or group; (2) does not include a purpose intended to benefit the public interest at large through the normal performance of official duties. MS. STAFT offered her understanding that this definition has been interpreted clearly in the past. 1:13:48 PM MS. STAFT, in response to comments and further questions, paraphrased a portion of Section 3's proposed subsection (g)(2)(A)-(D) to illustrate that under certain circumstances, a physically or mentally disabled family member's travel costs could be paid by the State; that proposed paragraph (2) reads: (2) the person's attendance is a benefit to the state; under this paragraph, a benefit to the state is presumed when (A) the person's attendance at the event is required for official action of the state; (B) the event is state-sponsored and the person's attendance has been customary at similar events; (C) the person is attending as an officially designated representative of the state; or (D) the person is invited by the sponsor of the event before the transportation occurs, the event is related to issues important to the state, the governor or lieutenant governor attends, and (i) the event is a family or youth event at which the person's attendance is particularly appropriate; or (ii) the invitation and the person's attendance have been customary for similar events. MS. STAFT added that the sponsor thought it was fair to pay the travel costs of a governor or lieutenant governor's mentally or physically disabled dependent child regardless of his/her age, and predicted that such probably wouldn't occur very often. REPRESENTATIVE GRUENBERG, in response to a comment, and speaking as the sponsor of HB 14, pointed out that the aforementioned regulations already include a provision authorizing the payment of a governor or lieutenant governor's minor child's travel costs to certain events, adding that he felt such should also be authorized for a disabled dependent child, otherwise the governor or lieutenant governor, as a parent attempting to conduct state business, could be put in a very difficult position. He, too, predicted that this probably wouldn't occur very often, particularly if the governor or lieutenant governor's child is severely physically disabled. 1:18:15 PM MS. STAFT went on to explain that Section 4 - proposed AS 39.52.470 - addresses the payment of legal fees and costs for an exonerated executive branch employees accused of ethical violations. Again, the difference between the aforementioned regulations and the bill is that under the regulations, the legal fees and costs could be paid before the executive branch employee is exonerated, whereas under the bill, payment couldn't occur until after he/she is exonerated, thereby precluding the need for the State to recoup its payments in the event that the executive branch employee is never exonerated. In response to comments and questions, she pointed out that the language of proposed AS 39.52.470(e)(2) stipulates that only the reasonable and necessarily-incurred fees and costs for private legal representation could be reimbursed by the State. She noted that Rule 82 of the Alaska Rules of Civil Procedure outlines a lot of the various factors the court would consider in determining whether fees and costs were indeed reasonable and necessarily incurred. Furthermore, proposed AS 39.52.470(a) stipulates that if the executive branch employee is accused of multiple violations, he/she could only be reimbursed for the fees and costs associated with the charges he/she is exonerated of. MS. STAFT, in response to questions, reiterated that the sponsor feels it would be safer for the State, in terms of it protecting its resources, to wait until after the executive branch employee actually is exonerated and then reimburse him/her for associated legal fees and costs, rather than to pay his/her legal costs and fees in an ongoing case and then seek recoupment of those payments when he/she isn't exonerated of ethical violations. Waiting until a person is exonerated is also in keeping with the laws pertaining to paying [legal] fees and costs incurred by judicial branch employees. She noted that Legislative Legal and Research Services was asked to research whether there were any states that allowed for the payment of ongoing legal fees and costs in advance of exoneration, but was unable find any in the time allotted. REPRESENTATIVE GRUENBERG - noting that Section 4 of the bill applies to all executive branch employees, not just the governor and lieutenant governor - explained that under Rules 79 and 82 of the Alaska Rules of Civil Procedure, a case has to be finally disposed of before costs and fees are apportioned. He characterized the regulations' alternative approach regarding the payment of legal fees and costs as constituting a very dangerous practice. It would be very difficult and problematic for the State to seek reimbursement from a person who is ultimately found to be guilty of embezzlement, for example, particularly if he/she goes on the run after being found guilty. MS. STAFT, in response to a comment, clarified that because it would be the State bringing the charges against the executive branch employee, the State couldn't pick who would represent the employee, because doing so would be a conflict of interest. It would be up to the employee to choose his/her own legal representation. 1:32:50 PM JUDY BOCKMAN, Assistant Attorney General, State Ethics Attorney, Opinions, Appeals, & Ethics, Civil Division (Anchorage), Department of Law (DOL), in response to a question and comments, clarified that the Alaska Executive Branch Ethics Act provides confidentiality for a complaint and all materials collected in the investigation, and so once the complaint is filed, it is the department's policy, as mandated by statute, to keep the matter completely confidential - not commenting even on its existence or its status. Although sometimes complainants publicly announce that they have filed a complaint, there is no penalty for doing so under the Alaska Executive Branch Ethics Act, and to assess a penalty against complainants who speak out would raise constitutional problems because the First Amendment allows citizens to express concerns and complaints about their government. REPRESENTATIVE GRUENBERG, in response to earlier comments, assured the committee that proposed AS 39.52.470(e)(2) was written very carefully, with language very similar to that found in the Alaska Rules of Civil Procedure, so as to ensure that the legal fees and costs that could be reimbursed by the state would be controlled. CHAIR GATTO, after ascertaining that no one else wished to testify, closed public testimony on HB 14. MS. STAFT, in response to questions, offered her belief that moving the definition of the term, "partisan political purpose" from AS 39.52.120(b)(6) to AS 39.52.120(h) wouldn't result in any substantive change to AS 39.52; and relayed that she isn't aware of what the rationale was for providing a maximum threshold of 10 percent in existing AS 39.52.120(f). 1:39:10 PM REPRESENTATIVE KELLER [made a motion] to adopt Conceptual Amendment 1, to insert on page 3, line 26, the word, "oriented" after the word, "youth". There being no objection, Conceptual Amendment 1 was adopted. 1:40:23 PM REPRESENTATIVE THOMPSON moved to report HB 14, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 14(JUD) was reported from the House Judiciary Standing Committee.